The Thin Edge

The TM Krishna column: Should the ‘collective conscience’ override the spirit of the Constitution?

The principle of justice demands that law cannot rely on or be influenced by any delusionary sense or mood of the people.

There are times when the actions of human beings are so grotesque and sordid that we want to tear ourselves away from our own skin and body. Moments when we wonder if we could by choice reject our natural membership of the human club. The Delhi gang rape and murder of December 2012 was one such event. This case ripped apart even the slightest hidden possibility of consideration towards the accused. As the details were unraveled, we had nowhere to hide and the lid was blown off what is the norm in our society. We treat women as objects of pleasure provided by the creator for men to feed on and discard as we please. Those little risqué acts that occur everyday in office spaces and on public buses and we pass off as normal is where all this begins.

A few days ago, the Supreme Court awarded the death sentence to every one of the convicted attackers in the case. And I am sure, soon the debate around the death penalty will be revived. But irrespective of whether we are for or against the death sentence, as long it remains in our Constitution, judges will use it. There is, however, a phrase used by the honourable judges in their judgement that troubles me deeply – collective conscience.

This is not the first time this conceptual framework has been used in awarding the death sentence. But the truth of the matter is that in similar cases, one judge has confirmed the death penalty while another has been more lenient, commuting the sentence.

Collective conscience makes its appearance through the individual conscience of the judge. So, when judges use this phrase, it is really to express what is essentially their own viewpoint, or they have taken it upon themselves to determine “collective consciousness”. Both these positions are entirely self-generated.

The Delhi gang rape verdict implies that the “tsunami shock” to the collective conscience of our society caused by that horror demanded that the death sentence be pronounced. Can the courts allow any kind of public outcry, sense of conscience, sentiment or feeling to even remotely influence their decisions, especially when it is a case of the death sentence? This is even more relevant in the times that we live in, when television and social media bombard us, creating and determining opinion.

I am no legal expert and, therefore, speak as a legally challenged citizen. The very idea that a collective “sense”, however powerful and influential, can play a role in anything legal needs to be pondered. It is in that direction that we need to ruminate, especially in cases where the judgement is entirely dependent on the interpretation by a solitary judge or solitary Bench. I am going to extend this phrase beyond its present interpretative legal framework for death sentencing and wonder whether this idea of collectiveness, cumulative opinion, practice, tradition, culture, etc has already been employed by judges while handing down disturbing judgements.

Prisoners of conscience

I began this piece with a few thoughts on rampant misogyny and patriarchy in our midst. But if we allow our collective sense to be part of anything judicial, we will find that many judges will become more than lenient with misogyny and male-chauvinism. Have we not heard judges, lawyers, public figures and politicians demand dress codes for women, accuse women of inviting rape and molestation because of the clothes they wear? Even recently, we heard women being questioned for being out late at night. And, of course, we as a society say nonchalantly that “men are just like that”.

The bitter fact is that this mode of thinking and acting is a natural part of large section of the Indian society. A judge, as just an extension of society, accepts and agrees with a perceived collective conscience, then interprets this in whatever way they want. This is exactly why we have had judges pronounce verdicts that leave us agape, yet if we go by collective sensibility as a measure, we will have to accept their diktat. Beyond what is clearly stated in the law books, there are so many grey areas with regard to culture, rituals and traditional practices that can be entirely driven by majoritarian leanings. It was our Supreme Court that overturned the progressive and beautiful judgement by Justices Ajit Prakash Shah and S Muralidhar of the Delhi High Court that held that Section 377 of the Indian Penal Code violated Articles 14, 15 and 21 of the Constitution. It is that very same collective morality that resulted in the Supreme Court’s wrong decision.

This can flow way beyond sexism. We live in times when the right to fearlessly speak, write or sing is constantly under attack. We have a government that uses greater good of the country, nationalism, national security and Indian-ness as devious strategies to overwhelm dissent under its weight. We are led by a political party that has a control over social media like no other outfit and sways public opinion through a propaganda machinery that is unmatched. Where are we headed if beyond the evidence and details of the cases, judges can get inspired by this manipulated collective “sense” to lay down more limitations on how we live our lives?

Take, for example, the compulsory “you better stand up for the national anthem when it is played in cinema theatres” order by the Supreme Court. There are many who find this entirely acceptable and the court itself might have sensed this collective agreement and a politically orchestrated national mood of jingoism. But the truth is, this order is authoritarian. A beautiful song that I love to hear and love to sing has become an instrument of compulsion. Will there be a day when the Supreme Court, after mulling over all the over-bearing and complex evidence, allows a Ram temple to be built in Ayodhya because the Hindus of this country (close to 80% of the population) wish for that to happen?

Our Constitution is based on the principle of justice for the most marginalised, disfranchised, oppressed, unknown, unseen and ignored. This spirit demands that law cannot rely on or be influenced by any delusionary sense or mood of the people.

We need in judges a liberal energy and the ability to be creative human beings. Creativity, incorrectly, is seen as lawlessness and hence many in the courts function “by the book” or “by their culture”, choosing between the two as per their convenience. But creativity is the only way we can fight inertia, conservatism and orthodoxy. If we do agree that the basic tenets of our Constitution rejoice in humanity, then creativity is the only way forward. The creative breathes within systems, yet it detaches itself from the personal and the public, allowing for the ethical and humanitarian to pave the way. Our judges need this vitality.

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